Murugiyah Rajendran v. TD Home and Auto Insurance Company, 2012 ONFSCDRS 30

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2012 ONFSCDRS 30

FSCO A09-002953

BETWEEN:

MURUGIYAH RAJENDRAN

Applicant

and

TD HOME AND AUTO INSURANCE COMPANY

Insurer

DECISION ON EXPENSES

Before: William J. Renahan

Heard: Written submissions received by November 23, 2011

Appearances: Rupa Karyampudi for Mr. Rajendran

Alison Varga for TD Home and Auto Insurance Company

Issues:

The Applicant, Murugiyah Rajendran, was injured in a motor vehicle accident on August 18, 2008. In a decision dated May 25, 2011, I dealt with his claims for statutory accident benefits under the Schedule.¹ I made the following orders, while reserving on the issue of expenses:

Mr. Rajendran is not entitled to caregiver benefits.
Mr. Rajendran is not entitled to attendant care benefits.
Mr. Rajendran is not entitled to housekeeping benefits.
Mr. Rajendran is not entitled to $137.96 for the cost of a psychological assessment.

The issue in this further hearing is:

Is either party entitled to expenses incurred in respect of this arbitration hearing?

Result:

TD Home is entitled to one-half of its expenses after agreement or assessment.

EVIDENCE AND ANALYSIS:

The criteria I should consider in determining entitlement to expenses of the arbitration proceeding are set out in section 12 of Ontario Regulation 664, R.R.O. 1990, as amended, at the time the application for arbitration was filed. The six criteria are:

Each party’s degree of success in the outcome of the proceeding.
Any written offers to settle made in accordance with subsection (3).
Whether novel issues are raised in the proceeding.
The conduct of a party or a party’s representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders.
Whether any aspect of the proceeding was improper, vexatious or unnecessary.
Whether the insured person refused or failed to submit to an examination as required under section 42 of Ontario Regulation 403/96 (Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996) made under the Act or refused or failed to provide any material required to be provided by subsection 42 (10) of that regulation.

I consider the criteria in order.

TD Home was completely successful in the hearing.
TD Home made a written offer to settle three business days prior to the hearing. It offered to pay Mr. Rajendran $3,500 to settle the caregiving and housekeeping issues and $2,000 in costs and to leave the issues of attendant care and the psychological assessment open. Rule 76 of the Dispute Resolution Practice Code directs me to pay particular consideration to a written offer made up to five days before the commencement of the hearing. Although Mr. Rajendran would have been better off if he had accepted this offer, I reduce the weight I place on this criterion because he only had three business days to consider it. Mr. Rajendran made an offer to settle the file for $17,500 on a full and final basis.
The parties did not raise any novel issues.
Having regard to the evidence I heard and the insurer’s assessment of what the claim was worth having regard to its settlement offer, the amount in dispute did not warrant a four day hearing. Both parties should have taken steps to shorten this hearing to about two days.
I inadvertently saw TD Home’s offer to settle before I signed the Reasons for Decision because counsel for TD Home sent a copy to the Commission. This lead to a motion as to whether I should recuse myself on the basis of an apprehension of bias. Counsel’s conduct unnecessarily prolonged the proceeding and could have required me to end the hearing and start it again before another arbitrator.
This criterion is not relevant.

Two counsel appeared for TD Home at the hearing. In its submissions, counsel wrote that TD Home is only seeking expenses for the junior counsel.

Overall, the hearing took too long to deal with claims with little merit. Having regard to the criteria, I order that Mr. Rajendran pay TD Home one-half of its expenses for its junior counsel after agreement or assessment. I urge the parties to take TD Home’s settlement offer into consideration as to what one-half of its reasonable expenses are. If the parties cannot agree on the amount of expenses, Rule 79.2 of the Dispute Resolution Practice Code sets out the procedure to follow for resolution of this issue.

March 12, 2012

William J. Renahan

Arbitrator

Date